Johnson v. Lombardi

United States District Court, W.D. Missouri, Central Division

August 9, 2016

LARRY EUGENE JOHNSON, Plaintiffv.GEORGE LOMBARDI, et al., Defendants.

ORDER

NANETTE K. LAUGHREY United States District

Plaintiff
Larry Eugene Johnson, an inmate, brings this suit alleging
Sixth and Eighth Amendment violations under Section 1983 and
a violation of the Missouri Sunshine Law under Mo. Rev. Stat
§ 610.023.3. Before the Court is Defendant Carey
Markley’s Motion to Dismiss [Doc. 12]. For the
following reasons, the motion is granted in part and denied
in part.

Plaintiff
Larry Johnson is an inmate at the Algoa Correctional Center
in Jefferson City, Missouri. According to Johnson’s
complaint, the Defendants-all corrections officers,
directors, wardens, or other prison staff members-have
repeatedly retaliated against Johnson for his attempts to
file and pursue inmate grievances, meet in confidence with
his attorneys, and defend himself at disciplinary hearings.

The
complaint provides several examples of these episodes. First,
beginning in 2015, Johnson’s meetings and phone calls
with his counsel were monitored by corrections officers.
Second, Johnson was placed in administrative segregation
after he fell in the shower and injured his face. Third,
Johnson ordered legal materials in advance of a disciplinary
hearing, but these materials were not delivered for four
months. Fourth, while Johnson was required to sign a form
acknowledging he received a copy of the Missouri Department
of Corrections’ Offender Rulebook, he did not, in fact,
actually receive a copy. Johnson’s mail was also
searched; when his attorney attempted to send him a copy of
the Offender Rulebook, it was found and confiscated. Fifth,
Johnson was forced to attend a disciplinary hearing without
his attorney. He was given a sentence at this hearing that
exceeded the allowable sentence under DOC rules and extended
his confinement period by three months.

Sixth,
Johnson was not provided medical care for a serious
toothache. He first sought care by filing multiple Medical
Service Request forms, which were ignored. Johnson then
presented to Defendant John Doe Markley, a doctor, in an
attempt to receive medical attention. Dr. Markley asked
Johnson to sign a liability release; when Johnson refused,
Dr. Markley slammed shut the prison cell’s chuckhole
door, cutting him in the face. On later attempts to receive
medical care, Dr. Markley and his staff, including Dr.
Markley’s spouse, Defendant Carey Markley, repeatedly
delayed Johnson’s appointment to have his tooth
extracted. When the appointment finally took place, Johnson
was forced to sign a waiver and the tooth was then removed in
an unnecessarily painful manner.

II.
Discussion

To
survive a motion to dismiss, a complaint must “contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim has facial plausibility
when its allegations rise above the “speculative”
or “conceivable, ” Twombly, 550 U.S. at
547, and where “the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged, ”
Iqbal, 556 U.S. at 678. Such a complaint will be
liberally construed in the light most favorable to the
plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801,
806 (8th Cir. 2008).

Defendant
Carey Markley asks the Court to dismiss the two counts
alleged against her: Count IV, which charges Markley with an
Eighth Amendment violation for failing to provide medical
care, and Count V, where Markley is charged with failing to
implement a constitutionally-adequate administrative
grievance process. Markley argues that Johnson has not
sufficiently pled the elements of either claim.

In the
alternative, under Federal Rule of Civil Procedure 12(e),
Markley moves for a more definite statement regarding the
date Johnson sought medical care, the dates of his scheduled
appointments, the date upon which he was refused medical
treatment, the amount of time he suffered tooth pain, and the
extent of the alleged conspiracy reached between Markley and
her spouse, Defendant John Doe Markley, to punish him.

A.
Count IV

Markley
maintains that Johnson has not sufficiently pled his Eighth
Amendment violation under Count IV. In her motion to dismiss,
Markley notes that the complaint “never specifically
allege[s] that [Markley] was deliberately indifferent to
[Johnson’s] medical needs and care.” [Doc. 13, p.
4]. Further, because mere negligence or medical malpractice
does not rise to a constitutional violation, Markley asserts
Johnson must “allege what [Markley] specifically did
that constituted cruel and unusual punishment.”
Id.

Yet the
specificity sought by Markley does not reflect the pleading
standard. In the Eighth Circuit, a prisoner or detainee must
demonstrate “deliberate indifference” to support
an allegation of constitutionally-deficient medical care.
Barton v. Taber, 820 F.3d 958, 964-65 (8th Cir.
2016). While deliberate indifference is, therefore, a
necessary component of Johnson’s claim, this does not
mean that the term itself-or any other particular words or
formulas-must be expressly mentioned in the complaint.
See, e.g., Whitington v. Ortiz, 307 F.App'x 179,
189 (10th Cir. 2009) (“We likewise disagree with the
conclusion that the complaint does not sufficiently allege
deliberate indifference to the situation. Although the exact
term was not used, the mental state of at least most of the
defendants was directly or by implication alluded
to.”); Brown v. Mitchell, 308 F.Supp.2d 682,
702 (E.D. Va. 2004) (“Although the Complaint does not
use the preferred term “deliberate indifference,
” the words “willful disregard” convey a
sufficiently similar meaning.”); Robert G. v.
Newburgh Sch. Dist., 1990 WL 3210, at *2 (S.D.N.Y. Jan.
8, 1990) (“Although the complaint does not use the
conclusory term “deliberate indifference, ” the
Court reads the complaint as alleging facts from which
deliberate indifference by the defendants can be
inferred.”).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Rather,
because deliberate indifference demands &ldquo;both an
objective and subjective analysis, &rdquo; Scott v.
Benson, 742 F.3d 335, 340 (8th Cir. 2014), a complaint
must merely (1) &ldquo;plead facts sufficient to demonstrate
that [the plaintiff] suffered from an objectively serious
medical need&rdquo; and (2) plead that the defendant
&ldquo;actually knew&rdquo; about, and disregarded, this risk
to the plaintiff&rsquo;s health. Barton, 820 F.3d at
964-65. An objectively serious medical need is &ldquo;one
that has been diagnosed by a physician as requiring
treatment, or one that is so obvious that even a layperson
would easily recognize the necessity for a doctor&rsquo;s
attention.&rdquo; Coleman v. Rahija, 114 F.3d 778,
784 (8th Cir. 1997). As to the subjective component, “a
complaint must allege ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.